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FREAS v. GUBER ET AL. (11/16/55)

November 16, 1955

FREAS
v.
GUBER ET AL., APPELLANTS.



Appeal, No. 178, Oct. T., 1955, from judgment of Court of Common Pleas of Montgomery County, June T., 1953, No. 192, in case of Edna S. Freas v. Leon Guber et ux. Judgment reversed.

COUNSEL

Desmond J. McTighe, with him Duffy, McTighe & McElhone, for appellants.

Julian W. Barnard, with him David B. Fitzgerald, for appellee.

Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside, and Ervin, JJ.

Author: Ervin

[ 180 Pa. Super. Page 10]

OPINION BY ERVIN, J.

This is an appeal from a final judgment entered upon a verdict of the jury for the plaintiff in an action of trespass, the defendants' motion for judgment non obstante veredicto having been overruled.

Considering, as we are obliged to do in a matter of this kind, Miller v. Hickey, 368 Pa. 317, 324, 81 A.2d 910, the testimony in the light most favorable to the plaintiff and resolving all reasonable inferences and conflicts in the testimony in her favor, the facts are as follows: plaintiff, a widow 71 years of age, had been employed by defendants as a domestic servant about one and a half years prior to the accident. Her duties consisted of doing light housework, taking care of the defendants' two children, ages six and seven years, and going down to the cellar and turning on the heat as occasion required. On March 31, 1953, at about 8:30 a.m., while the defendants and their children were on the second floor, the plaintiff undertook to go down

[ 180 Pa. Super. Page 11]

    to the cellar to turn on the heat. There was a door opening from the kitchen to the cellar stairway. From the kitchen door there were some spiral steps that curved to a landing. From the landing the steps went straight down to the cellar floor and there was no handrail. From the landing there is a doorway that opens to the outside and it was light outside. The stairway was "perfectly light" from the natural daylight coming through the cellar windows and through the glass in the door at the landing and through the kitchen door and also from the electric lights in the basement. The plaintiff testified: "... it was perfectly light so I could see to go down." Plaintiff got to the landing safely. She was on the landing when she saw a lot of clothes on the right side of the steps leading from the landing to the cellar. The left side appeared to be clear. Plaintiff started down from the landing and when she stepped off the landing (her other foot had not gotten off the landing) she slipped and slid down to the cellar floor. She crawled up the steps on her hands and knees. She then testified: "Q. All right. Now, as you crawled up, you crawled past the place where you had slipped, did you? A. Yes. The clothes were all slippery, of course, and naturally - Q. Did you find or discover any particular clothing there where you had slipped? A. Well, I couldn't just say. It looked like a silk slip that I slipped on, but I couldn't just say definitely, because the place was clear, and when I went to go down, naturally when I came up was - I was pulling myself up by my hands and knees - Q. You say it looked like a silk slip? ... Q. You said you did see what looked like a silk slip? A. Yes. ... BY THE COURT: Q. Did you say you saw a silk slip? A. Yes. ... BY MR. BARNARD: Q. What was the color of that silk slip? A. It was a dark slip. It looked like a black slip. Of course, there were so many clothes

[ 180 Pa. Super. Page 12]

    there I couldn't just tell whether it was that I slipped on. There was quite a few clothes there, and when I pulled myself up, of course, I pulled the clothes with me, too. Q. Are you definitely certain that you did slip? A. Oh, yes, indeed. I am sure of that." Plaintiff had never seen clothes on the steps before. The stairway was wood. The treads were never slippery. There was a laundry chute leading to a bin in the cellar for the storage of soiled clothing. Clothes can be placed in the chute from two points, a bedroom on the second floor and the breakfast room on the first floor. The plaintiff testified that the children never handled the clothes and that Mrs. Guber did the laundry except the bedding and the towels, which were sent out to a laundry. At the time plaintiff fell she was wearing bedroom slippers and suffering from arthritis. She did not move any of the clothes on the stairway with her hand or push them aside with her feet. While the plaintiff did not directly say that she slipped upon a silk slip, the inference might be drawn that she did. The plaintiff then had the burden of proving that the defendant placed the slip upon the step. She could do this either by direct or circumstantial evidence. She relied upon the circumstances that plaintiff never handled any laundry, that the two small children never handled laundry, that the only one in the household who handled laundry was the wife defendant and that there was no one else in the household except the two defendants, their two small children and the plaintiff.

In Mitchell v. Scharf, 179 Pa. Superior Ct. 220, 223, 224, 225 and 226, 115 A.2d 774, this Court recently said: "The doctrine of exclusive control, since its inception in Pennsylvania in the case of Shafer v. Lacock, Hawthorn & Co., 168 Pa. 497, 504, 32 A. 44, has had a varied and somewhat ...


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